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Friday, February 10, 2006

Ind. Decisions - Court of Appeals posts five today

In In the Matter of the Paternity of D.L.Y.R., a 4-page opinion, Judge Robb writes:

The State of Indiana, by the Allen County Title IV-D Prosecutor, appeals from the trial court’s order limiting the amount of income withheld from Demetrius Clark’s paychecks to $70 per week, contending the withholding of additional amounts from bonuses Clark received was proper, and that Clark had notice of such withholding. * * *

For these reasons, we hold that the trial court improperly limited the IWO to a maximum of $70 per week, and we remand for further proceedings. Reversed and remanded.

In Kunta K. Gray v. State of Indiana, an 18-page opinion, Judge Crone concludes:
In light of the multiple serious violent charges faced by Gray, we conclude that Gray’s appellate counsel’s failure to raise the severance/bifurcation issue, which was clearly set out by trial counsel and not waived by the stipulation, amounted to deficient performance. This deficient performance prejudiced Gray because had the issue been raised on direct appeal, he very likely would have received a new trial. Although we rarely find that appellate counsel is ineffective, based on the circumstances present here, we are convinced that this is one such case. The post-conviction court’s finding to the contrary leaves us with a definite and firm conviction that a mistake has been made. We must therefore reverse the denial of Gray’s petition for post-conviction relief and remand this case for a new trial. See id. at 680-81 (reversing post-conviction court’s judgment where appellate counsel’s “failure to present . . . claim on direct appeal of murder conviction amounted to ineffective assistance.”).
In Eryk-Midamco Company, et al. v. Bank One, N.A., a 10-page opinion, Judge Baker writes:
Appellants-defendants The Eryk-Midamco Company (Eryk), Mid-America Management Corporation (Mid-America), and Mark Misencik (collectively, the Appellants) appeal from the trial court’s order granting summary judgment in favor of appellee-defendant Bank One, N.A. (Bank One). The Appellants raise a number of issues, one of which we find dispositive: did the trial court err in failing to find that Bank One was barred from pursuing a conversion claim against the Appellants?1 Concluding that Bank One is statutorily barred from pursuing its conversion claim against the Appellants by virtue of Indiana Code section 32-30-5-1 et seq., the receivership statute, we find that summary judgment should be granted in favor of the Appellants.
In Indiana State Board of Health Facility Administrators v. Angela Werner, F.H.A., a 25-page opinion, Judge Barnes writes:
The Indiana State Board of Health Facility Administrators (“the Board”) appeals the trial court’s reversal of the Board’s order suspending Angela Werner’s health facility administrator license and requiring her to pay the costs of the proceedings. * * *

Conclusion. The trial court had subject matter jurisdiction over Werner’s petition for judicial review. The issue of whether it had jurisdiction over the case is waived because the Board failed to raise it in a timely manner. The Board’s decision to impose significantly more severe sanction without explanation is arbitrary and capricious and without observance of procedure required by law. However, under the facts of this case, the trial court should not have compelled the Board to adopt the ALJ’s recommended sanctions; remand is the appropriate remedy. We affirm in part, reverse in part, and remand.

"State erred in nursing home penalty" is the headline to a brief AP story on the Indianapolis Star site this afternoon.

In Estate of Christopher Sullivan, Thomas Sullivan, Administrator and Rhonda Sullivan v. Allstate Insurance Company, a 10-page opinion, Judge Baker writes:

Appellants-defendants Estate of Christopher Sullivan, Thomas Sullivan, and Rhonda Sullivan (collectively, the Appellants) appeal from the trial court’s order granting summary judgment in favor of appellee-plaintiff Allstate Insurance Company (Allstate). In particular, the Appellants argue that the trial court erred in defining the term “use” too narrowly in the context of an Allstate automobile insurance policy and in declining to find a genuine issue of material fact. Finding no error, we affirm the judgment of the trial court.

Posted by Marcia Oddi on February 10, 2006 11:53 AM
Posted to Ind. App.Ct. Decisions